Home » Combustible Cladding Update: Victoria Prohibits Use of ACP Containing Greater Than 7% Polyethylene

Combustible Cladding Update: Victoria Prohibits Use of ACP Containing Greater Than 7% Polyethylene

Posted by Ben Robertson | 05 February 2021 | Construction & Infrastructure

New Victorian Ban For ACP Wall Cladding Products in Type A and Type B Construction

Flexing his powers under s192B(1) of the Building Act 1993 (Vic), the Victorian Minister for Planning issued a declaration on 13 January 2021 banning the following external wall cladding products from being used in any buildings of Type A or Type B construction in Victoria:

  • Aluminium composite panels (ACP) with a core of less than 93% inert mineral filler by mass in external cladding as part of a wall system (i.e the plastic component such as polyethylene must not be greater than 7%); and
  • Expanded polystyrene products (EPS) used in an external insulation and finish (rendered wall system).

The declaration was made following a cost benefit analysis commissioned by the Victorian Government which found that the net benefit of the ban (excluding deaths and injuries) over a 20 year period was $19.99M, equating to an annualized cost of $1.0M per year.

Type A and Type B Construction

The ban applies to buildings of Type A or Type B construction in Victoria:

Type A Construction:
1. Class 2, 3 and 9 buildings with a rise in storeys of three or more; and
2. Class 5, 6, 7 and 8 buildings with a rise in storeys of four or more;

Type B Construction:
1. Class 2, 3 and 9 buildings with a rise in storeys of two; and
2. Class 5, 6, 7 and 8 buildings with a rise in storeys of three.

Date of Commencement of The Ban

The ban will come into effect from 1 February 2021 and replaces the current 2018 Ministerial Guideline “MG-14” which operated to prohibit the issuance of a building permit for buildings of Type A or Type B construction where the following products were proposed to be used:

a) ACPs with a polyethylene core of 30%; or

b) Expanded polystyrene products on multi-storey buildings,

unless there was a determination of the Building Appeals Board that the installation of the product complied with the Building Act 1993 and Building Regulations 2018, i.e. –

c) There was a performance solution under the NCC which demonstrated compliance with the NCC performance requirements; or

d) There was testing to AS1530.1 showing that the ACP was not deemed to be combustible.

Why 7% Polyethylene Core / 93% Inert Mineral Filler?

For anyone who has been living under a sheet of Fyrechek for the past seven years, here is a potted history of the problems with ACPs:

  • 1971: ACPs were patented in 1971, then marketed under the name “Alucobond”.
  • 1991: The patent expired in 1991, opening the building product up to other manufacturers.
  • 1990s: The Building Code of Australia (BCA) was amended and performance requirements were introduced into the code. There was a ‘dilution’ of the code which, while encouraging building innovation and incorporating a degree of flexibility into the BCA to avoid a ‘cookie-cutter’ type of construction, had the unfortunate result of opening the door to the importation and use of unsuitable ACPs in building facades – where previously the BCA had been clear in banning the use of combustible materials in multi-storey building facades.
  • 2014: Lacrosse Building (Melbourne) –  A fire in 23 storey building at 673 La Trobe Street, Docklands, Melbourne was initiated by a cigarette which wasn’t properly extinguished in the small hours of the morning and in turn ignited a plastic yoghurt container being used as an ashtray.  The fire spread to balcony furniture and then rapidly progressed across the vertical façade of the building. ACP with a polyethylene core was found to have contributed to the rapid spread of the fire. In VCAT proceedings determined in 2019, the builder was initially found liable to the owners and in turn liability was then apportioned as follows: Surveyor 33%, architect 25%, fire engineer 39%.  If you’ve added that up to 97%, that is correct – the smoker was found to be liable for 3% of the damages and the builder picked up that tab.  Damages were around $5.74M and the case is currently being appealed.  It was only through good fortune there was no loss of life.
  • 2017: Grenfell Tower (London) – Tragically at least 72 people lost their life in an inferno in a 24 storey building in North Kensington, West London. The fire started due to an electrical fault in a Fridge/Freezer.  The building had been refurbished in 2016 with ACP installed to address deterioration of the ageing façade and aesthetically improve the appearance of the brutalist concrete apartment building.  The ACP caused the rapid spread of the fire, due to both the composition of the cladding and the ‘chimney’ effect caused by the manner in which the cladding had been installed to the outside of the concrete façade.
  • 2019: Neo200 Building (Melbourne) – A fire at 200 Spencer Street, Melbourne was again was attributable to the use of ACP. The fire is thought to have started when a lit cigarette was thrown from a floor above and blown back onto a balcony on a lower floor.  Again, with good fortune, those in the building escaped any tragic loss of life with the fire causing property damage only.

On 20 November 2017, the Insurance Council of Australia (ICA) released Insurance Industry Aluminium Composite Panels Residual Hazard Identification / Reporting Protocol, and in that protocol, the ICA identified four categories of ACP as follows:

  1. Category A (30% – 100% Organic Polymer and 0% – 70% inert materials): ACPs in this category are similar to the ACPs involved with the Lacrosse and Grenfell fires.
  2. Category B (8% – 29% Organic Polymer and 71% – 92% inert materials): Typically identified by ACP manufacturers as fr, FR, or Plus.
  3. Category C  (1% – 7% Organic Polymer and 93% – 99% inert materials): Typically identified by ACP manufacturers as A2.
  4. Category D (0% Organic Polymer and 100% inert materials): Examples include aluminium skins with low adhesive aluminium cores, compressed fibre cement cores or steel panels with calcium silicate cores.

Victoria has now moved to only accept ACP within Categories C or D, and in doing so, it now has the most stringent ban in place for ACP when compared to other states and territories.

State/Territory ACP EPS
Victoria From 1 February 2021, ACP with a core of less than 93% inert mineral filler by mass in external cladding as part of a wall system is banned for Type A or Type B construction From 1 February 2021, EPS is banned for Type A or Type B construction
NSW From 15 August 2018, ACP with a core of greater than 30% polyethylene (by mass) is banned for Type A or Type B construction.  Exemptions apply for products that are tested to be compliant in accordance with AS1530.1-1994 or AS5113. Not banned
Queensland From 22 September 2017, ACPs with polyethylene cores were banned on government buildings.

From 18 October 2019, ACP with a core of greater than 30% polyethylene were banned for all buildings.

From 18 October 2019, EPS was banned for class 2 – 9 buildings of Type A or Type B construction.
Western Australia From 5 October 2018, performance solutions under the NCC are not permitted for combustible external walls unless the performance solution is verified in accordance with CV3. Not banned
South Australia No ban, although the use of cladding is determined on a case by case basis in accordance with a risk assessment of individual cases. Not banned
Tasmania Not banned Not banned
Northern Territory Not banned Not banned
ACT Not banned Not banned

Conclusion

The Victorian move to tighten its ban on ACP products will be welcomed by consumers and responsible industry stakeholders and will likely increase consumer confidence in the sector.

Over the medium to longer term, if the ban is effectively enforced, there may well be an added impact on insurance policies both in terms of lowering premiums and encouraging more professional insurance products for professionals who work with ACP and building facades.

Resources:

If you require assistance in relation to any combustible cladding issues, please contact us on construction@nexuslayers.com.au

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 This publication is © Nexus Law Group and is for general guidance only.
Legal advice should be sought before taking action in relation to any specific issues. 

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